Target of Online Griping Files Defamation Action

Fairfax-based Direct Connect, LLC, a credit card processing company, has sued Inkthis, LLC, and its owner, Debra Sachs, for alleged defamation and tortious interference with contract. Direct Connect is upset about certain statements posted on Inkthis’ Facebook wall, including one that referred to Direct Connect as “a bunch of thieves.” The defendants recently removed the case from Fairfax Circuit Court to federal court in Alexandria.

The Facebook posts describe the author’s frustration with certain business practices of Direct Connect, including what the author believed to be excessive charges debited from Inkthis’ bank accounts. Direct Connect says the statements are false, that the defendants knew the statements were false when they made them and, by publishing descriptions of the company that included words like “inept,” “horrible,” and “thieves,” the statements harmed Direct Connect’s reputation.

Statements that are relative in nature and depend largely upon the speaker’s viewpoint are generally considered expressions of opinion. Opinions cannot form the basis of a defamation action as they are protected by the First Amendment and generally cannot be interpreted as stating a provably false fact, a prerequisite for any defamation claim. Thus, referring to Direct Connect as “inept” and “horrible” will likely be deemed non-actionable opinion. Referring to the company as “a bunch of thieves” presents a closer question.

Like opinions, rhetorical hyperbole cannot reasonably be interpreted as a statement asserting actual facts. In one often-cited Virginia case, the Virginia Supreme Court held that referring to a university executive as the “Director of Butt-Licking” was mere hyperbole and could not be reasonably interpreted as a factual statement.

The interesting question here is whether referring to a group as a “bunch of thieves” should be interpreted differently than referring to a specific individual as a “thief.” Calling someone a thief is unquestionably defamatory, but notice the subtle change in meaning when (1) the statement is applied to a group of people, and (2) “thief” is replaced with “bunch of thieves.” Is the speaker actually asserting that each and every member of Direct Connect is a thief? I expect the court will dismiss the defamation claim.

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